§ Mr. Walker-Smith
I beg to move, in page 18, line 31, at the end to insert:Provided that where a parson commissions the making of a sound recording, and pays or agrees to pay for it in money or money's worth, and the recording is made in pursuance of that commission, that person, in the absence of any agreement to the contrary, shall, subject to the provisions of Part VI of this Act, be entitled to any copyright subsisting in the recording by virtue of this section.The effect of Clause 12 (3) is that the ownership of copyright in a recording vests in the maker unless expressly varied by contract. My hon. Friend the Member for Crosby (Mr. Page), who made many valuable suggestions in the course of the Committee stage upstairs, argued there that in cases where recordings were specifically commissioned either for private messages or advertisement purposes copyright should go to the commissioner. The effect of this Amendment is to follow that suggestion and vest the ownership of the commissioned recordings in the commissioner instead of the maker.
That is logical because it puts gramophone records on the same footing in this respect as photographs where copyright already vests in the commissioner in similar circumstances under Clause 4 (3). I hope that the Amendment will therefore commend itself to the House. It implements an undertaking which I gave in Committee, and I am grateful to my hon. Friend for his suggestion.
§ Mr. Graham Page (Crosby)
I had expected to have the opportunity of expressing my gratitude to my hon. and learned Friend earlier on an Amendment on page 12, line 42, but as in moving that Amendment he made his speech on the Amendment in page 14, line 26, I was deprived of the opportunity. However, I am very glad to have the opportunity of expressing my gratitude now for the introduction of this Amendment. I need not enlarge upon it. I put my arguments during the Committee stage discussions and my hon. and learned Friend has explained them here.
§ Amendment agreed to.
§ Mr. Walker-Smith
I beg to move, in page 19, line 1, to leave out, "they did not bear" and insert:neither the records nor the containers in which they were so issued bore.Perhaps it might be convenient if this Amendment and the two following Amendments on the same page in lines 9 and 10 were discussed together. They arise out of subsection (6) of the Clause which provides that there shall be no infringement of copyright if at the time of the issue to the public in the United Kingdom the records did not bear a label or mark indicating the year of first publication. We have been considering that in the light of certain further considerations which appear to arise and be material in this regard. They are, first, that again this matter is affected by the impact of the advent of long playing records which may of course comprise several recordings already issued as shorter records. That being so, several dates might have to be put on the one record.
The next consideration is that modern devices like magnetic tapes and wires are not physically capable of bearing labels in the same way as conventional discs. There is a third consideration which is legislative rather than mechanical. It is, of course, that during the Committee stage discussions we lengthened the copyright period for gramophone records from 25 to 50 years which minimises the importance of this date stamping provision in regard to records. Therefore we put down these Amendments.
The first Amendment makes it possible to have copyright protection for the records if the date is put on the container 761 instead of the records. For example, in the case of long playing records it would normally be, presumably, on the sleeve of the long playing record. I feel that this gives reasonable protection to the user. The other two Amendments are consequential on the first Amendment.
§ Amendment agreed to.
§ Further Amendments made: In page 19, line 9, leave out "bearing".
§ In page 19, line 10, at end insert "either on the records themselves or on their containers."—[Mr. Walker-Smith.]
§ Mr. Philip Bell
I beg to move, in page 19, line 17, to leave out from "are" to the end of line 19 and insert:directly or indirectly to relieve the poverty or to advance the religion or education of its members or are purposes beneficial to the public".Hon. Members will appreciate that the purpose of the Clause is to protect certain societies from paying an additional fee for a gramophone record played on their premises. This exemption was recommended very strongly by the Report of the Copyright Committee in paragraph 194. Perhaps I may be permitted to remind the House that the paragraph stated:We are strongly of opinion that most, if not all, of the activities of the branches of the kind of organisation represented by the National Council of Social Service, admission to which is restricted to members, ought not to attract a fee for the ancillary rights we are now considering, at least in respect of the use of records and sound broadcasts. The Societies are not conducted for profit, but are bodies with objects of a religious, social or educational kind; their aim is not to provide entertainment but to contribute to the well-being of society, and the members are joined by this common bond.The Report went on to make recommendations as to how that should be done. It was suggested:That statutory power should be given to a rule-making Authority—we suggest the Ministry of Education or the Ministry of Housing and Local Government—to make rules under which societies of a religious, social or educational character, not established or, conducted for profit nor conducted primarily for giving performances, should be entitled to apply for a certificate.That would be the authority for these societies not to have to pay a fee. In an attempt to avoid extra expense and trouble for the Government, the Bill 762 attempted to give effect to that object. The point of my Amendment is to test whether the drafting of the Clause as it stands has given effect to that object.
The House will appreciate that it is desired to exempt not only charities but some sort of auxiliary bodies not necessarily charities. The Clause originally said:Where a sound recording is caused to be heard in public …(b) as part of the activities of, or for the benefit of, a club, society or other organisation which is not established or conducted for profit and whose main objects are charitable.That gives rise to difficulty, because the expression "charitable objects", if used strictly within the meaning of the law, involves the members of the society not being the objects of the charity. However worthy the objects of a society are, if they are devoted entirely to the benefit of the members, the society is not a charity. It might be said that the main objects in this case are to promote education, but if they are merely to promote the education of the members the society is not a charity in the legal sense of the word.
§ Mr. Bell
Yes, I appreciate that point, but I was dealing with the first point about the main objects being charitable and was expressing doubt whether an organisation which, on the face of it, stood for charity or education could be regarded as an organisation for charitable objects if these were only for the benefit of the members.
Let me go on to the second point. The Clause proceeded:or are otherwise concerned with the advancement of religion, education or social welfare.We have to imagine a society with objects which are not charitable but are concerned with the advancement of religion or education or social welfare. In the opinion of the courts advancement of religion has been held to be something 763 direct and not merely assisting or helping or doing it indirectly. Therefore, any society which only indirectly helps the advancement of religion or education might not go far enough to come within this part of the Bill.
On the question of the advancement of social welfare, we are in the difficulty of not knowing whether that means the social welfare of the members of the society or social welfare at large. One can conceive of a society—indeed there are many—which, although its objects are stated to be the relief of poverty in general, may really be for the relief of its own members. Does the Clause as drafted mean a society whose objects are to help its own members or must it be a society which helps those outside its subscribing members?
Those are the reasons which have impelled me to put forward this Amendment. I am not saying that this Amendment carries the matter much further, but in an attempt to carry it further I put first the inclusion of organisations in which the charity is directed towards themselves and therefore suggest that the exemption should apply to clubs and societies whose objects areto relieve the poverty or to advance the religion or education of its members. …That includes what might not be strictly a charity, and then I seek to put in the general words:or are purposes beneficial to the public.That would include all the charitable organisations, and would also include social welfare and charities at large—any organisation which in conferring benefits on its members also benefits a substantial portion of the public. The difficulty I had is that I wanted to be satisfied that as far as possible this Clause would be wide enough to include what the House and certainly the Committee and the Report wanted—not merely societies which help people outside their membership, but also those which confer some benefit on themselves.
It is interesting to see the sort of societies which might not be caught by the present provision. A society for the repatriation of Jews probably would not be caught, that is to say, would not get the benefit of the exemption. There was an example recently of a Welsh centre 764 being formed for holding jolly Welsh festivals in London. It may be a good thing to have Welsh music on the gramophone, but such a society would have to pay for use of records. I am not sure that, as the Clause is drafted, it would get any benefit from the exemption. I am not even sure that Women's Institutes would get any benefit, because it might be said that they are not doing anything for social welfare except for themselves. Clearly this is not intended to benefit any froth-blowers' club or supporters of a football team. I suggest that the Parliamentary Secretary might be able to help us by saying whether he is really satisfied that these words cover the sort of organisation which we want covered.
It is interesting to notice that the Copyright Committee appreciated the difficulty by not attempting to draft the wording because the exemption was to include charities and something else. That is why it suggested that statutory powers should be given to a rule-making authority which could give a certificate and, subject to approval by this House, could specify the sort of organisation which should have the benefit of this exemption. For myself, I must say that where it is difficult to make a definition I would have thought that this was one of the cases which might properly be given to the rule-making authority.
§ Mr. Walker-Smith
The House will be obliged to my hon. and learned Friend the Member for Bolton, East (Mr. Philip Bell) for moving this Amendment with his characteristic clarity and conciseness. The Amendment deals with an important subsection, because under subsection (7) the exemptions are granted from the operation of the performing right in respect of these gramophone records. There are two heads of exemption under the two paragraphs of the subsection, one being certain types of residential premises—private hotels and the like, with which we are not here concerned, and the other, under paragraph (b) being these, broadly speaking, charitable, philanthropic and other organisations.
My hon. and learned friend has queried the language in which we have sought to spell out the type of organisations which will have the benefit of this 765 exemption and proposes—or tentatively proposes, I think I may say, if I interpret his approach correctly—another form of words. Naturally, I feel somewhat diffident in canvassing matters concerning the interpretation of the law of charities and so on with my hon. and learned Friend, who practices in the Division in which these matters are dealt with, but perhaps I might first of all take his point in regard to the limitation of the word "charitable" in our definition.
Our definition reads:… whose main objects are charitable or are otherwise concerned with the advancement of religion, education or social welfare.With respect, I am at one with my hon. and learned Friend in what he has said about the limitation which the courts have placed upon the meaning of the word "charitable", in this sense, that it excludes organisations, clubs or societies which are devoted to the relief of their own members. If our definition stopped there, there would. I think, be substance in his apprehension that our definition might exclude from the benefit of the exemption of this subsection certain philanthropic or voluntary organisations on the ground that their work was primarily directed to the benefit of their own members.
But of course—as was pointed out in what was, if I may say so, a characteristically helpful intervention by the hon. Member for Itchen (Dr. King)—our definition does not stop at the word "charitable"; it continues:… or are otherwise concerned with the advancement of religion, education or social welfare.Those words do spread very widely the net of our definition and, therefore, the benefit of our exemption under this subsection. I would venture to suggest that it is quite clear that if, in this time and age, an organisation is devoted to the relief of poverty, albeit it may be the relief of poverty of its own members—although that might not technically be "charitable" under the construction of that word in the courts—it would clearly fall within the wording "or otherwise" for "social welfare." I cannot see that it could fail to come under that limb of our definition.
That, I think, removes the main apprehension of my hon. and learned Friend. I do not think I will follow him in discussing all the examples which he gave, 766 because I think that the line of demarcation is clear and practical in the definition as we have it and that the Amendment which he suggests is unnecessary for the reason I have given.
I think also that the wording which my hon. and learned Friend suggests would be in some ways less satisfactory than the wording in the Bill. The Amendment proposed contains the words:… to advance the religion or education of ils members …In the Bill we say:… the advancement of religion, education or social welfare.That leaves the concluding words of the Amendment:… or are purposes beneficial to the publicto cover the charitable and social welfare referred to in our definition. In other words, my hon. and learned Friend's broad paraphrase has got to support the more specific things under those two heads in our definition.
I would suggest for the consideration of the House that the words which my hon. and learned Friend proposes in that respect are too vague to be satisfactorily written on the Statute Book. The terms that we have got have these advantages. The word "charitable," although not entirely comprehensive, as I have indicated, is a useful term because what it covers is pretty well clearly understood owing to the decisions of the courts in the past. The term "social welfare" is also a useful term as defining more precisely than my hon. and learned Friend's proposed terminology the sort of cases which one has in mind. It also has the added advantage that it has been written into a Statute as recently as in the last Session of Parliament. My hon. and learned Friend will appreciate that it is a test prescribed in the Rating and Valuation (Miscellaneous Provisions) Act, 1955. It is there used in a context dealing with the rating concessions to charitable and other bodies, which is rather analogous to the use here. The use of that phrase in the Rating and Valuation (Miscellaneous Provisions) Act will mean that there will be built up a body of interpretation and practice which will assist in the context of this Measure.
I hope that what I have said has brought reassurance to my hon. and 767 learned Friend that the form of words which appears in the Bill will meet the very proper anxieties which he has in mind, and perhaps he will be content with that and will not wish to proceed with his Amendment.
§ Sir Lionel Heald (Chertsey)
Before we part with this Amendment I would like to ask my hon. and learned Friend the Parliamentary Secretary to the Board of Trade if he is quite satisfied about this wording. He has told us that the effect of his wording is to go rather beyond the definition of "charity," and although he claims that it is not so vague as the wording of my hon. and learned Friend the Member for Bolton, East (Mr. Philip Bell), he has not really told us where it goes to.
I think we ought to be a little careful about this matter, because we are not merely enacting a new Act of Parliament. We may also be creating a precedent. The Parliamentary Secretary has told us that everybody knows what a charity is. I am sure he is well aware that in recent months there has been a little more uncertainty about it. There was a great controversy, for example, as to whether it was charitable to set up a bridge for the exclusive use of indigent Methodists, and other interesting discussions have taken place.
I cannot help thinking that it may be a little difficult if, at a time when we are all rather uncertain about what a charity is, we are going to make an exemption in a Bill of this kind in favour of something more than a charity but we do not know quite how much more. I hope this matter will receive careful consideration, because it is important that when we make provisions of this kind and of a rather new character we should be as precise as possible. Certainly it is not very satisfactory to say, "This is not a charity; we do not quite know what that is, but it is something more than a charity, and we do not quite know how much that is ". I cannot say that I think the Amendment of my hon. and learned Friend the Member for Bolton, East would make matters very much better, but I think that, whatever the difficulty is, we should like to have an assurance from my hon. and learned Friend the Parliamentary Secretary that he is really aware of what is being done in this Clause.
§ 9.45 p.m.
§ Mr. Walker-Smith
I can give my right hon. and learned Friend the Member for Chertsey (Sir L. Heald) that assurance, though to give an assurance that one is aware of the intention of a Clause is not, as I am sure my right hon. and learned Friend will appreciate more readily than anybody, to give an assurance that the wording which is proposed in the Clause, or in any other Clause of this Bill or in any other Clause or any Act of Parliament at all, will never fall to be interpreted by the courts. Of course, there is a long history of litigation in regard to the construction of what are charities and what are not ; but that does not mean that it is not better to use terminology which has had the benefit of construction in the courts or has the benefit of other use in an Act of Parliament.
Here we use the expression "charitable", which is at least a well known term, and I do not think my right hon. and learned Friend suggested we should not use it at all. The main point of difference here is as to whether it is better to use my hon. and learned Friend's phrase "purposes beneficial to the public" which has the benefit neither of precedent in an Act of Parliament nor of judicial construction, or our phrase "social welfare" which at any rate has the benefit of having been written into an Act of Parliament as recently as in the last Session. I think my right hon. and learned Friend will agree with me on that. Although I do not suggest that any course is going to be immune from the risks of litigation—I carry my hon. and learned Friend the Member for Bolton, East with me in that, I am sure—I do think that this is the best form of words which, having regard to human fallibility, we are able to achieve.
§ Mr. Anthony Greenwood
Before we leave this Amendment, I should like, if I may, to repeat a protest I made earlier in our proceedings today. This is a highly technical Bill. It is a Bill in regard to which those of us who are ordinary layman feel at something of a disadvantage, and I think the Government might have treated the House with rather more courtesy and arranged for one of the Law Officers of the Crown to be present. We have had the Government's wording 769 criticised by a very distinguished Chancery Silk, and a former Attorney-General has expressed doubts as to whether the Government have chosen the right wording. I think the least the Government could have done would have been to arrange for at any rate the Solicitor-General, if not the Attorney-General, to help us in our deliberations.
§ Sir A. Gomme-Duncan
Is it not possible that my hon. and learned Friend the Parliamentary Secretary, who is a lawyer of great distinction, is as capable as the Solicitor-General of answering questions on these matters?
§ Mr. Philip Bell
In the circumstances, Mr. Speaker, faced perhaps with the risk of litigation in the future—and that terrifies me—but hoping that my hon. and learned Friend the Parliamentary Secretary is right, that this does achieve some freedom for such societies, I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.